Local Government, Planning and Environmental Law: COVID-19 Update

14 APR 2020


Legislation has recently been amended in response to the COVID-19 pandemic to assist local Council’s through these difficult times. On 25 March 2020, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (“the Emergency Measures Act”) commenced and made a number of unprecedented amendments to the Environment Planning and Assessment Act 1979 (“EP&A Act”) and Local Government Act 1993 (“LG Act 1993”) in response to the COVID-19 pandemic.

Some of the amendments are as follows:

  • The Minister for Planning and Public Spaces is now empowered to make an order authorising development to be carried out on land without the need for any planning approval where reasonably satisfied that the order is necessary to protect the health, safety and welfare of members of the public. The making of an order is taken to be a grant of development consent.
  • Requirements in the EP&A Act and Environmental Planning and Assessment Regulation 2000 for a document to be made available at a physical location will be satisfied by the document being made available on the NSW Planning Portal.
  • The Minister for Local Government is able to postpone the holding of ordinary council elections and by-elections where considered reasonable to do so.
  • Requirements in the LG Act for councillors and other persons to attend council meetings will be satisfied where meetings are held remotely using audio visual links or other approved means. Similarly, requirements for meetings to be open to the public are satisfied where a webcast of the meeting is made public or members of the public are informed about what occurred at the meeting through other means.
  • Introduction of a power to create regulations under the LG Act to modify the Act’s operation in response to the public health emergency

Many of the amendments to both the EP&A Act and LG Act are proposed to be in place for at least 6 months after the commencement of the Emergency Measures Act, with in most cases a power being available to extend that period to 12 months. The Minister for Local Government is enabled to postpone elections for a period of 12 months.

The Minister for Planning and Public Spaces has since utilised the new powers under the amended EP&A Act to issue a number of orders in response to the pandemic, including in relation to health services facilities, temporary workers’ accommodation, food and drink takeaways and construction work days.

For example, the Environmental Planning and Assessment (COVID-19 – Health Services Facilities) Order 2020 (“the Health Services Facilities Order”) which commenced 2 April 2020 provides that development comprising a change of use of a building or place to a health services facility or another kind of health services facility and the construction of a temporary structure for those purposes can be carried out without the need for development consent, so long as the following conditions are complied with:

  1. The development is carried out by or on behalf of the Health Administration Corporation or another public authority;
  2. Where there is no existing health services facility, the owner has given written consent to the development;
  3. When operating outside of usual hours of operations, the development must take steps to reduce noise.
  4. The temporary structure must not remain in place for more than 4 months after the Emergency Measures Act commenced.

The Public Health Services Order also removes the need to comply with conditions on development consents for health services facilities which were issued prior to the commencement of the order relating to hours of construction, frequency of vehicle movements, noise and the like.

The Environmental Planning and Assessment (COVID-19 Development – Takeaway Food and Beverages) Order 2020 (“Takeaway Order”) which also commenced on 2 April 2020 authorises, among other things, the use of existing premises such as educational establishments, business premises or office premises which were operating as a cooking school prior to the pandemic, community facilities, food and drink premises and function centres for the sale of food and beverages to persons to consume off the premises without the need for planning approval. The Takeaway Order similarly authorises the use of mobile food and drink outlets without the need for planning approval.

The use of existing premises and mobile food and drink outlets pursuant to the Takeaway Order is, however, subject to a number of conditions, including that there is sufficient space for customers to practice social distancing and that no seating be provided.

Copies of the Emergency Measures Act and orders issued under the EP&A Act are available on the NSW Legislation website (https://legislation.nsw.gov.au/#/).

For further information on these planning and environmental law updates, please contact Adam Seton on aseton@marsdens.net.au or (02) 4626 5077 and David Baird on dbaird@marsdens.net.au or (02) 4626 5077.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.  

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POSTED: 25 Nov 2020
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